RECOUNT LOSER SAYS HE’LL STAY IN HOUSE ‘TIL COURT FIGHT ENDS
By Kyle Cheney
STATE HOUSE NEWS SERVICE
STATE HOUSE, BOSTON, JAN. 6, 2011…..Citing provisions in the state Constitution, Rep. Geraldo Alicea (D-Charlton) said Thursday he will continue to serve indefinitely in the Massachusetts House even though he lost a recount to Republican Peter Durant by one vote.
Although Alicea wasn’t sworn in with his colleagues Wednesday, he will continue to represent the Sixth Worcester district while a court challenge over the outcome of the recount is pending.
“If Peter prevails as the winner, I will be the first to shake his hand and congratulate him. We’re not there yet,” Alicea said in a phone interview. “Right now we’re in court. That’s pretty much where we have to go. People are seeing democracy at its best.”
After a December recount showed Durant winning by a single vote, Alicea petitioned Worcester Superior Court to include an absentee ballot that had been thrown out by election officials. If the court allows the ballot, a tie vote would necessitate a new election. The candidates are due in court by Jan. 14, although Alicea said the date could be moved up.
Durant told the News Service that Alicea shouldn’t be permitted to serve as a holdover.
“Here’s a guy who didn’t win basically continuing to serve and draw a paycheck that he doesn’t deserve,” he said in a phone interview. “In a body that’s been plagued by scandals it seems to just be another one.”
Durant said Alicea should consider forgoing his salary to acknowledge the uncertainty of the election. He said that he intends to ask colleagues to file legislation for him in advance of a Jan. 21 filing deadline. He also disputed Alicea’s contention that the court battle was “democracy at its best.”
“For democracy to be served, what we need to do is listen to the people,” Durant said. “The people have voted. There’s been a recount. I’ve been declared the winner and yet he’s the guy who’s in that seat.”
Alicea said he is unsure whether his powers as a state representative will change during the holdover period and said he intends to consult with House Clerk Steven James.
“For me, I’ve just been focusing one step at a time,” he said, “ensuring that every vote’s counted.”
The House clerk told the News Service that the constitution is unequivocal about permitting Alicea to continue serving until he or a successor is sworn in for a new term.
“There’s no choice to be made here. It’s under the Constitution. There’s no other option,” James said. “There’s no wiggle room here. The Constitution provides for this to protect the district and make sure they have representation.”
Alicea said he hadn’t spoken to Durant since the recount in December.
Alicea’s situation bears striking resemblance to 2003, when Rep. Matthew Patrick continued to serve even though the outcome of his Cape Cod election was disputed in court. Citing Article 64 of the constitution, which allows members to serve until their successors are sworn in and qualified by the House, Patrick continued to receive a paycheck and was allowed to vote in the House even though he was not sworn in for a new term. Ultimately, the court ordered a new election but the House ignored the order and opted to seat Patrick, who had won a recount by 17 votes.
House Speaker Robert DeLeo has said he intends to wait for the court’s decision before deciding who should be sworn in to represent Sixth Worcester district, which includes Charlton, East Brookfield, Southbridge and portions of Oxford and Spencer.
According to a spokeswoman, Alicea opted against attending Wednesday’s swearing-in of members of the House, which included a vote for speaker of the House, “out of respect for the House.”
“He did not want to draw any attention away from the swearing-in ceremony,” said the spokeswoman, Karen Sharma.
House Minority Leader Brad Jones said in December that Alicea should not be sworn in or “allowed to serve in the same capacity as Matt Patrick.” He said that if anyone were seated on a temporary basis, it should be Durant.
Rep. Paul Frost (R-Auburn) said permitting Alicea to continue serving is consistent with precedent.
“What it looks like from past practice and within the constitution, it appears that Rep. Alicea may be carried over,” he said. “He can still serve as the legislator until this is all ironed out. I think, if that’s the way the policy, the rule is … I guess there is no issue there.”
Frost added, “I still think Peter Durant’s going to be here.”
